FJ Blog

Updates on Administrative Relief: Oral Arguments in the Texas v. United States case and Post-Injunction 3-year Employment Authorization Documents under 2012 DACA

On July 10, the United States Court of Appeals for the Fifth Circuit listened to oral arguments regarding President Obama’s DAPA and expanded DACA deferred action programs. The arguments are available here. If the Obama administration prevails and these programs are implemented, they would provide temporary, but renewable, relief from deportation for approximately 4.4 million undocumented immigrants currently living in the U.S. Roughly 700,000 undocumented farmworkers and their spouses are estimated to be eligible for DAPA or expanded DACA.1

Having heard the arguments, the three judge panel will now have to decide whether to keep in place the injunction issued by the district court in Texas or whether to lift the injunction and allow the programs to be implemented. The issues before the court are whether the state of Texas has standing for its lawsuit against the federal government and whether the claims presented by Texas and the other states are matters than can be decided by the federal courts. Alternatively, the Court can consider on constitutional grounds whether the president overstepped his authority when he created DAPA and expanded DACA programs. If the court finds that the President did overstep his authority, it would affirm the February injunction of the District Court that prevented President Obama’s plan from moving forward.

As to whether Texas and the states even have the power to challenge the federal executive branch's authority to regulate immigration (the “standing” issue), the arguments on that issue largely have centered on the costs Texas would incur by having to issue driver’s licenses to DAPA beneficiaries. Texas has said it would be a burden to have to pay at least $130 each for driver’s licenses for as many as 500,000 unauthorized immigrants who could obtain the licenses if they received deferrals under the president’s programs. Texas is arguing that the driver’s license costs are an injury that gives them the right to sue. Texas Solicitor General Scott Keller told the panel that the suing states will be harmed if the president’s policies are allowed to take effect, as they’d result in undocumented immigrants gaining lawful presence in the U.S and becoming eligible certain health-care benefits.

On the other side of the arguments, the US Government’s lawyer (Benjamin C. Mizer, a principal deputy assistant attorney general) asked the panel to lift the injunction and clear the way for President Obama’s DAPA and expanded DACA programs. He noted that these programs are meant to protect qualifying immigrants from deportation and allow them to work in the country legally. Judges Smith and Elrodquestionned the US government about its contention that the administration had ample authority to focus immigration enforcement on deporting immigrants who commit crimes or threaten national security, and to defer deportations of those who pose little risk to public safety and have families in the United States. Assistant Attorney General Mizer argued that both of the elements at the heart of Obama’s directive — stopping deportations and subsequently granting those immigrants work permits — were legally sound. Judge Elrod’s question in response underscored her skepticism - “So the secretary has boundless discretion to give work authorization to whomever he wants and it is not constrained by congressional law?”

Two of the judges on Friday's panel, Jerry Smith and Jennifer Walker Elrod, were in the majority on the panel that voted 2-1 in May against allowing the deferred action programs to continue pending the appeal of the injunction. In that prior opinion, they disagreed with the US Government’s contention that Texas had no standing. They also previously ruled that the Obama action was subject to judicial review under the federal Administrative Procedures Act (in other words, that the Obama Administration should have engaged in notice and comment rule-making to create the DAPA and expanded DACA programs), which the Justice Department disputes.

The July 10 oral arguments lasted for more than three hours. The judges did not say when a decision will be issued. Whoever the losing party is, it is likely they will appeal the decision. The losing party could seek “en banc” review by the 5th Circuit Court of Appeals; however, it is not clear that this would be advantageous for the US government to do. The next step would be a request for the Supreme Court to review the issue. The timing of the 5th Circuit’s ruling is important because of the limited intake of cases and calendar of the Supreme Court’s oral argument sessions as well as the upcoming presidential campaign. A decision from the nation’s highest court could come during the intensity of the 2016 presidential campaign. The last time around, after the appeals court considered the emergency request to stay the injunction, that ruling wasn’t handed down until more than a month after the oral arguments in April. It’s conceivable a final decision on the constitutionality of President Obama’s immigration executive order may not come until the summer of 2016.

DACA Post-Injunction 3-Year EADs

As we mentioned in our last update, the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been impacted is the issuance by DHS of 3-year employment authorization documents (EADs) after the issuance of the injunction on February 16, 2015. The Judge has ordered DHS to show compliance with the injunction by July 31, 2015 and DHS is replacing the 3-year EADs issued or mailed after the injunction with 2-year EADs. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction must be returned to DHS. If DHS does not recover the 3-year EAD, it may call recipients and possibly conduct home visits to recover the 3-year EADs. It is very important that individuals who fall in this category return their 3-year EADs. DHS is threatening to take adverse action against those DACA recipients who fail to return their 3-year EADs, including the possible termination of DACA employment authorization, with possible negative future implications.

This recall does not apply to the approximately 108,000 three-year EADs that were approved and mailed by USCIS on or before the February 16, 2015, injunction date and that have never been returned or reissued by USCIS.

For those who would like assistance knowing whether the recall applies to their EADS, United We Dream has developed a tool for people to "screen" themselves: www.unitedwedream.org/uscisalert.

Additional resources are available on USCIS’s webpage in English or Spanish

Yet another 4th of July passed without immigration reform, depriving millions of aspiring Americans of an opportunity to come forward and obtain protection from deportation and the ability to live and work in the United States without fear. Unfortunately, the road to relief may continue to be a long one.

The injunction preventing the implementation of President Obama’s immigration relief programs remains in place. Oral arguments on the appeal of the injunction were held today in the 5th Circuit Court of Appeals. The arguments are available here. Because two of the 5th Circuit Court of Appeals’ judges who ruled against the Obama Administration’s earlier request for an emergency stay of the injunction are on the panel that is hearing this appeal,the prospects for a favorable outcome are considered low. We cannot predict the timing of the 5th Circuit’s ruling. We do know, however, that the fight is not yet over. It is likely that either losing side will appeal the decision, possibly to the entire 5th Circuit Court of Appeals (called an en banc decision) and eventually to the Supreme Court. Unfortunately, the lawsuit has caused significant delays and is impeding the ability of eligible individuals to enroll in the DAPA and expanded DACA programs. Once we have had an opportunity to listen to the oral argument we will share any relevant observations with you.

Remember that the DACA 2012 program is not affected by the injunction and continues in effect. The only piece of the 2012 DACA program that has been affected is the issuance of 3 year employment authorization documents (EADs) following the injunction in February. Three year EADs issued or mailed to DACA recipients on or after the February 16, 2015 injunction will be replaced with 2 year EADs and the 3 year EADs must be returned to DHS. There are roughly 2000 of these post-injunction EADs. Roughly 100,000 3 year EADs were issued prior to the injunction and those DACA recipients are not affected by this recall.

What’s going on with Congress’s continued failure to pass immigration reform…

H-2A agricultural guestworker program

In June/early July, the U.S. State Department reported a glitch on their computer system to process visas, including H-2A visas. Several hundred H-2Aguestworkers waited along the borders for days as the computer system was being repaired. Impacted employers protested loudly, pointing to a loss of profits. Of course H-2A workers were also suffering from these delays as they incurred costs for hotel and sustenance while waiting for the ability to travel to the United States and begin work (the employer is ultimately supposed to pay the costs but until that happens, workers carry the burden of the debt).

The back-up demonstrates what we already know: the H-2A program is not a solution to our nation’s broken immigration system. Congress must take action to enact comprehensive immigration legislation that provides a path to legalization for the roughly 11 million aspiring Americans, including farmworkers and their families. Immigration reform should also address the flawed H-2A program and should ensure that any future guestworker program includes a roadmap to citizenship, strong and equal labor protections, true economic freedom and mobility, and sensible limits.

State Legislation

While we would love for Congress to wake up to the realities on the ground and pass immigration reform legislation, it’s unlikely in the near future. We are already seeing Presidential candidates using the immigration issue to build their campaigns, most notably in the downright racist comments of Donald Trump, of which we are sure many of you are all too aware.

Some states have tried to take matters into their owns hands (remember Utah?) and now there is legislation in California that seeks to do just that-- Assembly Bill 20, authored by Assembly Member Alejo. Unfortunately, as currently framed, AB 20 is actually more like a grower-sought guestworker program than a legalization program that respects the contributions of agricultural workers. The legislation adopts grower critiques of the H-2A program, requires potentially eligible workers to meet a past and future agricultural work requirement (with none of the modest protections found in the H-2A program), and does not ensure that farmworkers have equal representation in process. As the symbolic legislation that it is (since it’s a state acting in a federally preempted sphere, which the bill acknowledges), the legislation and its symbolism should be based on immigration status and economic freedom, not a narrow “work permit” along the lines of a guestworker program that primarily serves the benefit of agricultural employers.

Unionization and Litigation Successes Help Address Broken and Discriminatory System

The undocumented status of the majority of farmworkers is widely recognized as a major contributing factor to the low wages, poor conditions and extensive illegal practices in agriculture. Recent settlements and cases highlight the rampant abuses in agriculture but also point to successes in the courts. The U.S. Equal Employment Opportunities Commission (EEOC) settled for $330,000 a sexual harassment and retaliation lawsuit on behalf of 10 farmworkers against Zoria farms (which previously operated a dried-fruit processing company that was sold to Z Foods). The case alleges that at least four female workers were sexually harassed by two supervisors. Along with their coworkers, the women reported the issue; however, their complaints were not addressed by the company. Instead, the victims and coworkers who reported the harassment were not rehired when Zoria Farms was sold to Z-Foods. The case against Z Foods is still pending.

In a victory for farmworkers, the United Farm Workers and five workers settled lawsuits against the California Division of Occupational Safety and Health (Cal-OSHA) for neglecting its duty to enforce the Heat Illness Prevention regulations. The settlement will result in better enforcement of the heat protection regulations and better coordination with the UFW to ensure that farmworkers and other outdoor workers are protected from heat illness and death. More information, including an informational video featuring Secretary of Labor Perez and UFW President Rodriguez, is available on the UFW’s website.

In New Mexico, years of advocacy by the New Mexico Center on Law and Poverty has resulted in a decision by the state Court of Appeals that the exclusion of farm and ranch laborers from the Workers’ Compensation Act violates farmworkers’ rights to equal protection under the state Constitution. In reaching its decision, the court noted “[w]e fail to see any real differences between farm and ranch laborers and all other workers in New Mexico that would justify the exclusion.”

In Vermont, dairy workers with Migrant Justice are organizing for justice through the launch of a new campaign, Dairy for Dignity. The campaign seeks to improve living and working conditions for workers through a five-point plan that would include a farmworker authored code-of-conduct, farmworker education, and economic relief. Ben and Jerry’s has committed to working with Vermont dairy workers to adopt the Milk with Dignity campaign in its supply chain. Migrant Justice’s also recently released a survey of living and working conditions for dairy workers. The survey found that roughly 40% of Vermont’s dairy workers are paid under the Vermont minimum wage and have no day off per week. On average, the dairy workers surveyed worked between 60-80 hours per week.

Farmworker Movement in DC

Finally, we wanted to share that on July 3rd, the Smithsonian’s National Portrait Gallery opened their exhibit “One Life: Dolores Huerta,” focusing on Dolores Huerta’s work and role in the farmworker movement of the 1960s and 70s. If visiting with your Members of Congress is not reason enough for you to come to DC, this exhibit provides you another purpose for a trip to DC! As you may know, Farmworker Justice earlier this year created an annual Dolores Huerta Award.

Stay tuned for our next update, in which we plan to share more information and analysis about the DHS’s enforcement priorities.

Farmworker Justice applauds the Supreme Court's decision to uphold the Affordable Care Act's (ACA) provision to provide subsidies (in the form of tax credits) to consumers who bought health insurance through the federally-facilitated health insurance marketplaces (Healthcare.gov). The subsidies are essential to ensure that farmworkers and their families have access to affordable health insurance. The Court's decision ensures that the millions of people can stay covered on their health insurance plans without fear that their premiums will suddenly become unaffordable.

Nearly 6 million people nationwide are enrolled in health insurance through the marketplaces. Among low-income adults, there was a 6% decrease in the uninsured rate in 2014. For Hispanic individuals, there was approximately a 5% decrease in the uninsured rate. While we do not have data on the number of farmworkers who enrolled in health insurance under the ACA, many farmworkers who did enroll were first-time enrollees who received substantial subsidies to lower the cost of health insurance.

Currently, 34 states, including many states with significant farmworker populations (such as North Carolina, Florida, and Texas) use healthcare.gov. The Court's ruling ensures that farmworkers who live and work in these states will continue to have opportunities to enroll in affordable, comprehensive health insurance. Farmworker Justice will work with our partners across the country to provide information on the ACA to further facilitate farmworker enrollment in health insurance.

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The FJ Blog is dedicated to facilitating an ongoing conversation that we hope will enhance understanding of farmworkers' problems, stimulate discussion of effective solutions, spread compassion and ignite a spark in even more people as we continue our efforts to empower farmworkers to improve their living and working conditions.